N.J. bill to allow collection of DNA tramples on individual privacy

Jerry McCrea/The Star-LedgerDeborah Jacobs, executive director of the American Civil Liberties Union of New Jersey, says a proposal to allow law enforcement officials to take DNA from people who are arrested is a threat to privacy and due process.

By Deborah Jacobs

The state Assembly will vote today on a bill that may appear to be tough on crime, but in reality does no more than undermine the foundation of our criminal justice system: innocent until proved guilty.

The bill (A2594/S737) would allow law enforcement officials to take DNA from people who are arrested for certain crimes before they’ve even had their day in court.
This most personal information, which includes genetic data not only about a person but about an entire family’s bloodline, would land in state and federal databases that would maintain it indefinitely.

While DNA technology holds tremendous potential to assist in criminal investigations and identification, as well as exoneration, the hastening reliance on the technology threatens to eviscerate deeply rooted privacy and due process protections. The database systems that store highly personal genetic information are vulnerable to security compromises and government intrusions that jeopardize individual privacy and a free society.

Under this proposed law, a person who is acquitted in court would have to navigate the legal system to expunge his DNA from the state database. Those most likely to be arrested for crimes but not convicted, who bear the burden of removing their own DNA from the system, overwhelmingly belong to a class of disadvantaged citizens who lack the time, resources and knowledge to pursue expungement. And while they might succeed in scrubbing their DNA from New Jersey’s state database, the bill provides no way to retrieve the data sent to the federal government’s nationally aggregated Combined DNA Index System database.

For all of the sacrifices it demands, this bill gives little back in return. New Jersey law already mandates collection of DNA from anyone convicted of a crime and gives law enforcement agencies considerable leeway to seek a warrant for a suspect’s DNA.
The only new DNA profiles the state would collect under this bill belong to innocent people. It’s an absurd, expensive, unnecessary overreach that asks citizens to put their fundamental rights on the chopping block.

The American Civil Liberties Union frequently represents clients who are wrongfully arrested, usually by police officers overstepping their powers. We have seen that even when no crime has been committed, police officers brandish the powers separating them from civilians.

False arrests are so common a problem that such complaints are specifically tracked in statewide internal affairs accounting.

In Camden, three officers admitted to planting evidence on many individuals they arrested; charges for at least 185 people have been dismissed as a result. That’s potentially 185 people who — already victims of police misconduct — would then have to use their own and the public’s resources, such as court time, to expunge their DNA in order to protect their privacy and that of their future generations.

The nature of DNA, as well as its mythic status in the popular imagination, magnifies the hazards of this bill.

Unlike a fingerprint or even an iris scan, DNA is more than a simple biometric identification. It contains information about a person and everyone in the same bloodline, including their susceptibility to disease and even markers of behavioral predispositions. The privacy implications are staggering.

DNA collection has only as much integrity as the individual institutions that use it. Physical samples require careful treatment to prevent contamination and the consequences of a mix-up could be devastating.

DNA evidence, rather than a silver bullet, has proved to be fallible.

Individual studies of DNA databases in Arizona, Illinois and Maryland uncovered hundreds of supposedly unique profiles that matched others. Scientists trying to pursue those inconsistencies hit a wall of government secrecy, leaving us to put our faith in the government to check and balance its own use of a technology.

While the actual benefits of the bill are negligible, its threats to privacy and due process are real.

Our lawmakers should not jeopardize individual privacy, state resources, the public trust and the principle of innocent until proved guilty to stockpile the genetic information of the impoverished and the innocent — not in America.

Deborah Jacobs is executive director of the American Civil Liberties Union of New Jersey.